In the state of Texas, parties to a civil suit must disclose certain information to each other within 30 days of filing their appearance. These disclosures consist of information like the names of the parties themselves, the legal theories and methods of calculating damages each party is relying on, and any witnesses who may have knowledge of the facts of the case. These requirements, presented in Texas Rules of Civil Procedure Rule 194.2, ensure each party has access to relevant information from the beginning and helps create a more even playing field from which to negotiate or litigate.

What kind of consequences result from a party’s failure to comply with Rule 194, whether by failing to answer in time or leaving out required information? The Texas Supreme Court recently released a decision that revolved around a party whose disclosures contained both of the afore-mentioned deficiencies. Andrew Jackson v. Kristen C. Hitchcock Takara, et al., was a negligence suit where the decedent, a handyman, was completing some tree-trimming work on a landowner’s property when he fell to the ground, sustaining injury. After his death, the handyman’s sister sued the owner of the property on behalf of his estate. The jury failed to find any negligence on behalf of either party resulting in a take-nothing verdict. However, the trial court’s decision was reversed and remanded.

The appellate court determined a new trial was warranted revolving the testimony of a neighbor called by the defense. It wasn’t the contents of her testimony they deemed problematic, but the fact that she was permitted to testify at all. In the Defendant’s initial disclosure responses, no mention was made of the neighbor at all. Only two weeks before trial, however, the Defendant supplied Plaintiff’s counsel with the neighbor’s name, and only her name, omitting her address, phone number, and any topics on which she may testify. Based on the seemingly flagrant noncompliance with the rules of discovery by the defense, the Plaintiff moved to exclude the neighbor from testifying, but was denied relief.

Under Rule 193.6, a party may not offer testimony from a witness who was not timely identified, unless the court finds there was good cause for the failure, or that the failure will not unfairly surprise or prejudice the other parties. Rule 193.6(b) requires that the court’s finding be “supported by the record.” Ultimately, the trial court in this case determined that the inclusion of the neighbor’s testimony would not unfairly surprise or prejudice the Plaintiff. The court of appeals’ determined the trial court abused its discretion. In analyzing whether the trial court’s decision was in fact “supported by the record,” the court of appeals only considered the actual evidence admitted and presented at trial. However, during the trial, defense counsel had made representations in that the Plaintiff had identified the neighbor multiple times during her deposition, had been to the neighbor’s home when the parties inspected the landowner’s property, and had spoken to her several times. He also informed the court that the parties had actually agreed to extend the discovery deadline.

The Supreme Court found that the court of appeals misapplied Rule 193.6 in failing to consider the defense counsel’s statements. From the statements made by the defense at trial, it was apparent that not only was the disclosure of the neighbor as a witness not late, but that no unfair surprise or prejudice resulted from her testimony, as the Plaintiff was clearly aware of the witness and her relationship to the decedent and had reasonable notice of the possibility of her testifying at trial.

Plaintiff alleged that Defendant’s website promised Full Self-Drive (FSD) features for a 2020 Tesla Model 3 which Plaintiff purchased in 2021. Plaintiff refused all offers to settle and the case went to trial.

At trial, the Court considered the following as significant: (1) the vehicle was purchased “as-is,” (2) Plaintiff had the opportunity to test drive and reject the vehicle at delivery and within 7 days thereof, and (3) Plaintiff chose to keep the vehicle.

Abigael Campbell successfully argued that Tesla’s FSD capability refers to the hardware or computer installed in the vehicle and not the subscription to enable the ADAS features, which must be purchased separately using the owner’s Tesla account. Defendant also presented evidence that the DMV found no evidence of fraud in the transaction, despite Plaintiff’s claims to the contrary. The Court ultimately found for the defense in a take nothing judgment.

William Sharp obtained a defense verdict during a bench trial in Tarrant County Justice of the Peace Court. The Plaintiff claimed our client negligently performed services on his vehicle which irreparably damaged the engine and sought to recover the cost to replace the engine. It was our client's position that Plaintiff failed to present evidence to support his claim and could not prove that our client’s work proximately caused the engine failure. At trial, the Judge dismissed the case.

We are proud to announce the selection of Lane Farley, Doug Fletcher, Joanna Salinas, Mike Shipman, and Steven Springer to the 2023 Texas Super Lawyers list. This is an exclusive list, recognizing no more than five percent of attorneys in Texas. To read more, please click here.